Supreme Court to decide on Michigan affirmative action fight — again

Erika JohnsenPosted at 1:41 pm on October 14, 2013

Back in the 2003 case of Grutter v. Bollinger, the Supreme Court decided in a 5-4 vote that the University of Michigan Law School could indeed grant admissions preferences to minority applicants in the interests of fostering diversity on campus — but then in 2006, 58 percent of Michigan voters supported a ballot initiative that amended the state’s constitution and thereby prohibited Michigan’s public-education institutions from providing preferential treatment to anyone on the basis of race of ethnicity.

The issue that will hit the Supreme Court this week in Schuette v. Coalition to Defend Affirmative Action, then, is whether or not state voters are allowed to effectively ban affirmative action from public-school admissions. In March 2012, the Sixth U.S. Circuit Court of Appeals just barely decided that the contested “Proposal 2” is unconstitutional, arguing that the measure forbids minorities from seeking admissions preferences but allows others, such as alumni/donors/athletes, to request favored treatment from state universities — which the judges supposed is in and of itself a form of racial discrimination. SCOTUS is now taking on the challenge to that decision, via the WSJ:

Michigan’s attorney general, Bill Schuette, scoffs at that finding. “In Michigan, the only thing we’re discriminating against is discrimination. Period,” Mr. Schuette, a Republican, said last week. While racial diversity remains a worthwhile aspiration for public universities, “we’re saying we want to achieve this goal by constitutional means, not by any means necessary,” he said.

That remark was aimed at a group that challenged Proposal 2 within hours of its adoption: the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. The Detroit-based group, which takes its name from a phrase popularized by Malcolm X, the slain 1960s activist, describes Proposal 2 in court papers as a “legal sword” that champions of “white privilege” can “wield whenever and wherever a university admits what the opponents believe are too many minority students.”

“We don’t believe in the colorblind Constitution,” the coalition’s attorney, George B. Washington, said in an interview. “We’re making what we think is a straightforward defense of the rights of black and Latino young people” to seek admissions preferences from university officials—something now prohibited in Michigan unless Proposal 2 were repealed.

Mr. Washington’s group has not always seen eye-to-eye with mainstream civil-rights organizations. The American Civil Liberties Union and the NAACP Legal Defense and Educational Fund filed a separate challenge to Proposal 2, and on Tuesday the argument against the initiative will be divided between Mr. Washington and a veteran ACLU attorney, Mark Rosenbaum.

Seven states (California, Florida, Arizona, Washington, Nebraska, Oklahoma, and New Hampshire) have similar bans on affirmative action, so the justices’ decision could have implications for their own admissions practices. Justice Kagan recused herself, meaning that the decision will fall on the remaining eight justices and that Kennedy is probably the man to watch, via SCOTUSblog:

When the Justices convene on Tuesday for the oral argument, Justice Elena Kagan will not participate, presumably because she was involved in the case in some way when she served as the Solicitor General of the United States. (She also did not participate in the Fisher case, for the same reason.) Kagan’s recusal means that, if the Court were to divide four to four, the lower court’s decision would stand, although it wouldn’t apply to the rest of the country. But the Court’s five most conservative Justices will cast votes in the case. Because they have previously advocated for using race less in the government’s decisions, it is hard to see where the opponents can find enough votes in their favor. And if the ban survives, more states could follow suit, rendering the Court’s discussion of when the Constitution permits universities to choose to use affirmative action moot in those states.